Abstract
This study examines the concept of the borrowed penal sanction (also referred to as borrowed criminal punishment), which is deeply rooted in the general theory of penal sanctions. Through an analysis of legislative texts and jurisprudential interpretations, the research demonstrates that this concept is more than just an interpretative tool. Instead, it is a genuine legislative and drafting technique employed by lawmakers to define certain forms of criminal punishment. It functions as an independent subsidiary theory with significant legislative and judicial implications, contributing to the establishment of elements of punishment and the achievement of legislative goals, such as textual brevity. A borrowed sanction is established when, instead of prescribing a new penalty, the legislator explicitly or implicitly refers to an existing sanction stipulated for another offence, or relies on the general provisions of criminal law to establish a rule of broader application. This approach is usually justified by the similarity of the social harm caused or the similarity of the legal structure of the two offences. Furthermore, it helps to prevent inconsistencies between general and specific penal provisions, reduces ambiguity and ensures the coherent application of criminal law. It also facilitates the classification of penal norms into general and specific categories.
This study adopts a comparative methodology combining textual analysis of legislative provisions with an examination of legislative approaches in Iraq, Egypt, France, Syria and Kuwait, to establish and critically assess this theory. The findings reveal widespread adoption of this mechanism in the penal codes and special legislation of these jurisdictions. However, its judicial application has raised practical challenges, particularly with regard to the phrase without prejudice to any stricter penalty (or notwithstanding any heavier penalty), as this can introduce ambiguity and lead to inconsistent interpretations that potentially conflict with the principles of legality and proportionality.
The study concludes that the theory of the borrowed penal sanction is compatible with the principle of legality, as the source of punishment remains the legislative text itself, which defines its scope and prevents unlawful analogy. In terms of evaluation, the theory offers notable advantages, including enhancing legislative conciseness, avoiding textual redundancy, unifying penal policy, filling legislative gaps and providing lawmakers with flexibility in addressing emerging crimes. Nevertheless, it has also been criticized for potentially undermining legal certainty, failing to ensure proportionality between crime and punishment, and creating difficulties in judicial application.
In conclusion, the study asserts that borrowed penal sanctions are an essential legislative tool for establishing a coherent and effective penal system. However, its effective use requires clear legislative drafting, well-defined application criteria, and adequate judicial training. The research also recommends making use of the flexibility of this mechanism to address contemporary criminal phenomena, while ensuring that the fundamental rights of the accused are safeguarded and that the principles of legality and proportionality in criminalization and punishment are upheld.
